United States Coal & Coke Co v. Turk

• Decision Date: 12 December 1944
• Docket Number: No. 9596.,9596.
• Citation: 33 S.E.2d. 463
• Court: West Virginia Supreme Court
• Parties: UNITED STATES COAL & COKE CO. v. TURK et al.

33 S.E.2d. 463

UNITED STATES COAL & COKE CO.

v.TURK et al.

No. 9596.

Supreme Court of Appeals of West Virginia.

Dec. 12, 1944.

Dissenting Opinion March 28, 1945.

Syllabus by the Court.

1. A legislative act dealing broadly and in general terms with a subject, will not affect an earlier statute which comprehensively covered a specific and particular branch of that subject, in the absence of a clearly manifested intent of the Legislature that it should so operate.

2. Section 16, chapter 91 of the Acts of the Legislature of 1925, re-enacted as section 16 of article 7 of chapter 47 of the Code of 1931, and again re-enacted as section 17 of chapter 13 of the Acts of the Legislature of 1933, regular session, is not repealed, amended or otherwise modified by chapter 131 of the Acts of the Legislature of 1937.

3. An assignment of a part of an employee's future wages, made in conformity with the provisions of section 17 of chapter 13 of the Acts of the Legislature of 1933, regular session, to secure a loan made to the employee by a licensee under said chapter, is valid, although not made in conformity with the provisions of chapter 131 of the Acts of the Legislature of 1937 relating to the assignment of future wages in general.

KENNA, J, dissenting.

Appeal from Circuit Court, Mercer County. •

Action by the United States Coal & Coke Company against Max Turk and others, doing business as the American Loan Company, and another under the Declaratory Judgments Act relating to validity of the assignment of wages under the Small Loan Act. From an adverse judgment, the plaintiff appeals.

Affirmed.

Arthur S. Dayton and J. Newton Harman, III, both of Charleston, for appellant.

Jerome Katz, of Bluefield, for appellees. ROSE, President.

This is a proceeding under what is called the Declaratory Judgments Act of this state, being chapter 26 of the Acts of the Legislature of 1941, which appears as article 13, chapter 55, of Michie's West Virginia Code of 1943. The plaintiff in the proceeding is the United States Coal and Coke Company and the defendants are Max Turk and others, "doing business as American Loan Company", and Eddie Baker. The United States Coal and Coke Company, on and before the 9th day of March, 1940, was, and thenceforward to this time has been, engaged in the business of oper-ating a coal mine in McDowell County. On that date the defendant, Eddie Baker, was an employee of the plaintiff and continued as such to the time of the institution of this suit.

On March 9, 1940, Baker executed to the defendant, American Loan Company, an assignment of his wages in the amount of $225 to secure the Loan Company in the repayment to it of the sum of $225, with monthly interest on $150 of that amount at 3¹/₂ per cent and on the residue thereof at 2¹/₂ per cent until paid. On or about the 18th day of January, 1943, the Loan Company caused a copy of said assignment, together with a notice and affidavit, showing the amount due and unpaid thereon, to be regularly served upon the plaintiff. It is conceded that this assignment, notice and affidavit are in strict conformity with the requirements of what is known as the Small Loan Act embodied in chapter 13 of the Acts of the Legislature of 1933, Regular Session, now found in Michie's West Virginia Code of 1943 as article 7a of chapter 47 thereof. The plaintiff, however, alleges that this assignment is invalid by reason of its failure to conform to certain provisions of chapter 131 of the Acts of the Legislature of 1937 relating in general to assignment of future wages. The appellee, American Loan Company, takes the position that the last-mentioned act was not intended to, and does not, apply to assignments made under the provisions of the Small Loan Act. This issue is the sole controversy presented on this appeal. The defendant, Eddie Baker, made no appearance below nor in this court.

A brief history of the statutory enactments of our Legislature relating to the assignment of wages becomes necessary. We are cited to no statute of this state relating to the assignment of wages prior to the enactment of chapter 63 of the Acts of the Legislature of 1887. That act was entitled "An Act to secure to operatives and laborers engaged in and about mines, manufactories of iron and steel, and all other manufactories, the payment of their wages at regular intervals, and in lawful money of the United States." The only portions of that act pertinent are found in sections 1 and 2 thereof and are as follows:

"That all persons, firms, corporations, or associations in this State, engaged in mining coal, ore or other minerals, or mining and manufacturing them, or either of them, or manufacturing iron or steel, or both, or any other kind of manufacturing, shall pay their employees as provided in this act.

"All persons, firms, companies, corporations, or associations, engaged in the business aforesaid, shall settle with their employes at least once in every two weeks, unless otherwise provided by special agreement, and pay them the amount due them for their work or services in lawful money of the United States, or by the cash order as described and required in the next succeeding section of this act. Provided, That nothing herein contained shall affect the right of an employe to assign the whole or any part of his claim against his employer."

The pertinent parts of this statute continued to and were embodied in the Code of 1931 as article 5, section 3 of chapter 21, in substantially the same language, where it remained unrepealed and unamended until the enactment of chapter 131 of the Acts of 1937. This amendatory act was entitled "An Act to amend and reenact section three, article five, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, relating to assignment of wages." The amendment effected by this act was the adoption of the following paragraph:

"No assignment of or order for future wages shall be valid for a period exceeding one year from the date of such assignment or order. Such assignment or order shall be acknowledged by the party making the same before a notary public or other officer authorized to take acknowledgments, and such order or assignment shall specify thereon the total amount due and collectible by virtue of the same and three-fourths of the periodical earnings or wages of the assignor shall at all times be exempt from such assignment or order and no assignment or order shall be valid which does not so state upon its face: And provided further, That no such order or assignment shall be valid unless the written acceptance of the employer of the assignor to the making thereof, is endorsed thereon: Provided further, That nothing herein contained shall be construed as affecting the right of employer and employee to agree between themselves as to deductions to be made from the payroll of employees."

In 1925 the Legislature enacted chapter 91, entitled "An Act to license and regulate the business of making loans in sums of three hundred dollars or less, secured or unsecured, at a greater rate of interestthan six per centum per annum, prescribing the rate of interest and charge therefor, and penalties for the violation thereof, and regulating the assignment of wages or salaries, earned or to be earned, when given as security for any such loan, and for wage assignments given as the consideration for any sale." This act, in form and substance, constituted a specific statute governing persons and corporations engaged in the business of making loans of less than $300 and regulated the assignment of wages and salaries, earned or unearned, when given as security for such a loan. It consisted of nineteen sections, section sixteen thereof, relating to the assignment of wages, being as follows:

"No assignment of or order for the payment of any salary, wages, commissions or other compensation for services, earned or to be earned, given to secure any such loan shall be valid unless the amount of such loan is paid to the borrower simultaneously with its execution; nor shall any such assignment or order, or any chattel mortgage or other lien on household furniture then in the possession and use of the borrower be valid unless it be in writing signed in person by the borrower; nor, if me borrower is married, unless it be signed in person by both husband and wife; provided, that written assent of a spouse shall not be required when husband and wife have been living separate and apart for a period of at least five months prior to such assignment, order, mortgage or lien.

"Under any such assignment or order for the payment of future salary, wages, commissions or other compensation for services, given as security for a loan made under this act, a sum equal to ten per centum of the borrower's salary, wages, commissions or other compensation for services shall be collectible from the employer of the borrower by the licensee at the time of each payment of salary, wages, commissions or other compensation for services from the time that a copy of such assignment verified by the oath of the licensee or his agent, together with a similarly verified statement of the amount unpaid upon such loan, is served upon the employer."

This act is recognized as having resulted from certain investigations and recommendations made by the Russell Sage Foundation, a similar statute being adopted in many states about the same time. Cash Service Company v. Ward, 118 W.Va. 703, 192 S.E. 344.

By chapter 13 of the Acts of the Legislature, Regular Session, 1933, the Act of 1925 was amended by the elaboration of certain sections and the addition of others, making a complete act of twenty-seven sections. Section 16 of the Act of 1925 was embodied in the Act of 1933 almost verbatim and appears as section 17 thereof.

It is conceded by counsel, as indeed it must be, that the Act of 1937 does not purport to amend the Small Loan Act of 1933 directly. The plaintiff, however, insists that it does so by...